Sunday, June 17, 2012

Supreme Court justices should be elected

This is my pre-emptive post reacting to the near-future decision by the Supreme Court on Obamacare. Maybe they'll preempt my preempting by doing the right thing instead, but I doubt it. My best guess from reading Kennedy's and Roberts' questions is the same as the conventional wisdom, that they'll at least strike down a significant portion of the ACA on the fatuous activity/inactivity distinction.

I read Bush v. Gore the day it came out - five judges with little (Kennedy, O'Connor) to no (other three) history of ever caring about equal protection before that point suddenly joined two of the other four who also saw a problem in how the Florida Supreme Court was conducting the vote recount, but the five then refused to fix the problem but rather just stopped the recount. The five used a contorted decision-making process to reach that result and then declared it had no effect on any subsequent decisions, to make sure their decision didn't accidentally provide equal protection to people who actually needed it.

Less well-known outside of environmental law is the SWANCC case, where the Supreme Court in a 5-4 ruling pretended the Clean Water Act didn't rely on the Commerce Clause for its constitutional authority, but only on constitutional authority to regulate navigable waters. They made this up, because the majority wasn't ready to address the extent of the Commerce Clause.

Skip to 2012, where they'll soon adopt this activity/inactivity distinction. Kevin Drum has a good take on it:

Of course it [ACA] was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn't really think it was anything but a long shot.

So how did that conventional wisdom change so dramatically in only two years? Ezra Klein writes about this in the New Yorker this week, but hell, Ezra's a liberal. He's probably sort of flummoxed too. Instead, let's hear what a nonliberal has to say about it:

Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. "That legitimized the argument in a way we haven't really seen before," Kerr said. "We haven't seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage." Finally, he says, "there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame."

I've previously supported 18-year term limits for the Court, partly as a way to reduce the politicization of the nomination process by reducing the stakes involved, but that's not enough. We're in the worst of possible worlds right now, with a Court making political decisions but without political accountability. Let them face the voters if they've decided to be politicians as well.

It's not going to happen. Term limits don't seem likely to happen either, although Democrats should at least lift a finger in support of it. Elections shouldn't happen with lower judges who are bound somewhat by precedent, but term limits should.

Despite the terrible image we lawyers have, I like to think there's at some background level an integrity about the law that can overcome politics. With this Supreme Court, though, maybe we should admit our weakness and bring democracy to limit the politicized "justice".